Last week, the American Immigration Lawyers Association (AILA) wrote a letter urging the Biden Administration to "take action to manage migration at the U.S. southern border in an orderly and effective manner while also ensuring a fair and humane process for people arriving at our borders." That's an excellent idea. The problem comes with the implementation, and here, AILA's solutions fall short.

The impetus for AILA's letter comes from "reports indicating the administration plans to implement a national border expulsion authority and raise the legal standard for credible fear interviews [initial evaluations of asylum eligibility]," which would make it more difficult for migrants to enter the country at the Southern border. President Biden has not made any announcement yet, but in the wake of the failed Senate bi-partisan border bill, rumors that the Administration will take unilateral action have been swirling. Of course, the President has limited authority and must act within the law, but the law is murky, and AILA wants to ensure that any executive action would not "violate United States and international asylum law and send people eligible for legal protection back into life-threatening conditions."

While AILA has highlighted the potential risks of executive action (i.e., that legitimate asylum seekers will be turned away), the organization has offered no realistic ideas to improve the situation. AILA indicates that the "way forward requires new solutions that must incorporate an all-of-government approach that is backed by a major increase in funding across all immigration agencies." More funding? Are you serious? Even AILA knows that ain't gonna happen: "The greatest hurdle the administration faces is the lack of adequate funding which we recognize results from the inability of Congress to pass regular or emergency spending bills." You don't say.

In the absence of additional funding, AILA suggests that the Administration should "use any authorities available that enable it to draw or transfer existing resources." In other words, the organization is suggesting that the Administration rob Peter to pay Paul. If such a transfer is even legally possible, it begs the question: What vulnerable groups will lose funding in order to finance migrants at the border?

Assuming the Administration can find these magical funds, AILA recommends using them for a host of border-related services, including "maximally increasing the capacity at ports of entry," "adding asylum officers," "providing legal representation to those who cannot afford counsel," and "providing support and foreign assistance... to address the root causes of migration." That all sounds pretty expensive, and it's hard to imagine the government coming up with the money by "transfer[ing] existing resources." But who knows? Maybe they have a good bookkeeper.

Perhaps I am being unduly harsh. Without additional funding, there is no good solution for the border situation. But there are solutions, and some are less bad than others. It seems to me that AILA--the premier organization representing immigration attorneys (including yours truly)--has a responsibility to come up with realistic ideas that do not depend on imaginary sources of funding. AILA also has a duty to take politics into account, especially during an election year where the Republican candidate represents an extreme threat to immigrants, minorities, and democracy itself. Recent polling suggests that 77% of Americans view the situation at the border as a "crisis" or a "major problem," and this plays into the hands of Donald Trump.

If the goal is to reduce the number of people arriving at the border--and given voter sentiment about the border during an election year, that probably should be the goal--what "less bad" solutions might we try? What can the Biden Administration do now, with limited funds and a high level of public concern?

Primarily, I think the Administration (and we as a nation) need to think about who we believe deserves asylum. Asylum was not created to protect people from all types of harm. Rather, it was created to protect "refugees," which are defined as people who face persecution on account of their race, religion, nationality, political opinion or particular social group. Over the last few decades, these definitions--especial "particular social group"--have been expanded by litigation (and not through any sort of democratic process). As a result, more and more people qualify as "refugees" and are thus eligible for asylum. In the absence of Congressional action, the Biden Administration can narrow the definition of refugee, which would reduce the number of people eligible for protection.

Narrowing the definition of refugee is not enough if asylum cases take years. To deter ineligible asylum seekers, we need more clarity about who qualifies for protection, and those decisions need to be made quickly. This means that when applicants arrive at the border and request protection, they should be screened not only for a fear of harm (as they are now), but also for whether that harm is on account of one of the five protected grounds. In this way, people who do not face harm for a protected reason can be more quickly excluded, which will have a greater deterrent effect on future applicants.

The "resources" needed to screen arriving migrants are Asylum Officers, who are already largely engaged in this work (at the expense of affirmative asylum applicants, most of whom are waiting indefinitely for their interviews). To free up more officers, the Biden Administration could designate certain countries or groups for much more perfunctory interviews--Uyghurs from China or human beings from Afghanistan, for example. Providing truncated interviews for people who qualify for asylum would remove some applicants from the affirmative asylum queue and would allow more officers to focus on the border.

As an advocate for asylum seekers, I am not saying that I love the idea of excluding vulnerable people who cannot qualify for asylum at the border--I don't. But given the legal, financial, and political constraints, something needs to change. AILA and everyone else concerned about this issue should be working towards a more sustainable situation at the border. However, unless our ideas are grounded in reality, they move us no closer to a solution.

Originally posted on the Asylumist: